[2024] UKUT 405 (AAC)

The matters which I have set out are sufficient, in my judgment, to conclude the matter in favour of SE. There is however a further point which troubles me, which I will mention here without needing to rely on it.

The logic of the Respondent’s argument, as I understand it, is that Art 29 operates to displace any other entitlement to cash sickness benefits which the family member of a pensioner may enjoy, provided only that a Member state other than the state of residence is responsible for the costs of benefit in kind paid to that pensioner. Given the wording of Art 29, there does not appear to be any scope for any exception to be made.

In the present case, as in Harrington, that might be thought to produce a surprising result, whereby the prima facie entitlement of a UK citizen living in the UK to a UK benefit for which they otherwise qualify is taken away by reason of their relationship to a family member who happens to have some unrelated entitlement or insurance from some other EU member State. That would be so even if the family relationship was formed in the UK, or if the family member had never moved out of the UK or exercised free movement rights. In Harrington, it would have been so despite the fact that H did not live with the relevant family member, and so far as I can see would still have been the case even if H’s mother had been economically active in the UK. In the present case, it would be so, on the Respondent’s approach, even for someone in broadly SE’s position who had no connection with Switzerland other than by marriage, or even if she had received CA in respect of her children for many years before remarrying a person with a Swiss pension in say 2017.

It is possible to go further however. SE does not, as I understand it, currently receive a UK pension, but at least by 2018 she would have been credited with sufficient NI entitlements to qualify her for such a pension when she reaches retirement age (which by my calculation will be in 2029, at the age of 67). In her case she may not, of course, still be caring for C3 by then. But even if she herself becomes a pensioner, she will still be the “family member” of a person in receipt of a Swiss pension, and on the Respondent’s approach, Art 29 will continue to affect her access to cash sickness benefits, including not only CA but also for example AA. I cannot see that there is any provision in Reg 833/2004 which deals with the situation where the family member of an insured person, or of a pensioner, is themselves an insured person or a pensioner (compare Art 23, which only applies where the pensioner themselves receives a pension from the state of residence, but not where their family member does). On my approach, as with the approach in Harrington, that makes sense, because Arts 21 and 29 only confer additional rights, but do not operate to take them away. But on the Respondents’ approach, in either case, the rights of one insured person in the Member State in which they are insured may be detrimentally affected by the rights of another insured person, merely because the latter is living outside the state in which they are insured. I struggle to see how that can accord with the purposes of co-ordinating the social security schemes of the Member States.

Finally, as I have said, Mr McCay drew my attention to two decisions of Commissioner Stockman, in Northern Ireland, namely SP v DC (PIP) [2023] NiCom 23, and IP v DC (AA) [2023] NICom 27, where the Respondent’s arguments about the effect of Art 29 was, implicitly at least, rejected. He submitted however that they provided limited assistance, inter alia because “the Commissioner … did not have a cogent explanation as to why the UK could deny competence by reference to the provisions of Title III of” Reg 833/2004. Having considered those judgments, I accept that there is force in that point, so far as it goes. In SP, Commissioner Stockman repeatedly expresses frustration at the Department’s failure to explain its case, and its repeated change of position. At ¶33, he refers to a “route via Article 25, Article 24(2), Article 29 and Article 21”, and says that “I found this submission confusing”, and points out that it was not the case presented at the hearing. It does not appear to have been clarified further and, when Commissioner Stockman directed further clarification, Art 29 was not further relied upon by the Department and indeed it conceded the competent state issue (¶36). Commissioner Stockman therefore set out no reasoned conclusion as to the construction of Art 29. In SP, the Department appears to have again conceded the case, and Commissioner Stockman simply reaffirmed his earlier decision. I am not bound by the decision of a single Commissioner, and in light of the above, they have limited persuasive value on the key issues I have to decide. Having considered those issues for myself, however, I have reached the same outcome as Commissioner Stockman.